8-K: Current report filing
Published on January 5, 2006
OMEGA
HEALTHCARE INVESTORS, INC.
Issuer
to
WACHOVIA
BANK, NATIONAL ASSOCIATION
Trustee
Supplemental
Indenture No. 2
Dated
as
of December 30, 2005
$100,000,000
of
6.95%
Notes due 2007
SUPPLEMENTAL
INDENTURE NO. 2,
dated
as of December 30, 2005 (this “Second Supplemental Indenture”), between
OMEGA
HEALTHCARE INVESTORS, INC.,
a
corporation duly organized and existing under the laws of the State of Maryland
(the “Company”) and WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
trustee (the “Trustee”).
RECITALS
WHEREAS,
the
Company has heretofore delivered to the Trustee an Indenture dated as of January
24, 1997 (the “Original Indenture”), as amended and supplemented by Supplemental
Indenture No. 1 dated as of August 5, 1997 (the “First Supplemental Indenture”)
(the Original Indenture as amended and supplemented by the First Supplemental
Indenture, the “Indenture”), providing for the issuance from time to time of the
Company’s 6.95% Notes due 2007 (the “Notes”).
WHEREAS,
in
accordance with Section 902 of the Indenture, the Company has obtained the
consent of the holders of a majority in aggregate principal amount of the Notes
outstanding to the amendments to the Indenture set forth in this Second
Supplemental Indenture.
NOW,
THEREFORE,
in
consideration of the premises herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
it
is mutually covenanted and agreed as follows:
ARITCLE
ONE
RELATION
TO INDENTURE; DEFINITIONS
SECTION
1.1. Relation to Indenture
This
Supplemental Indenture constitutes an integral part of the Indenture.
SECTION
1.2. Definitions.
For
all
purposes of this Second Supplemental Indenture, except as otherwise expressly
provided for or unless the context otherwise requires:
(1) Capitalized
terms used but not defined herein shall have the respective meanings assigned
to
them in the Indenture; and
(2) All
references herein to Articles and Sections, unless otherwise specified, refer
to
the corresponding Articles and Sections of this Second Supplemental
Indenture.
ARITCLE
TWO
AMENDMENTS
TO INDENTURE
SECTION
2.1. Amendments to Indenture. Effective
as of the Amendment Effective Date (as defined below):
(a) The
following Sections of the Indenture, and any corresponding provisions in the
Notes, hereby are deleted in their entirety and replaced with “Intentionally
Omitted.”:
Existing
Section Number Caption
SECTION
801. Company
May Consolidate, Etc. Only on Certain Terms.
SECTION
1002. Maintenance
of Office or Agency.
SECTION
1004. Statement
as to Compliance.
SECTION
1006. Provision
of SEC Reports.
SECTION
1007. Limitations
on Dividends, Distributions
and
Acquisitions of Capital Stock.
SECTION
1008. Existence.
(b) Subsections
(4) through (8) of Section 501 (Events of Default) of the Indenture, as amended
by Section 2.13 of the First Supplemental Indenture, and any corresponding
provisions in the Notes, hereby are deleted in their entirety and replaced
with
“Intentionally Omitted.”
(c) The
first
paragraph of Section 1104 of the Indenture (Notice of Redemption), and any
corresponding provisions in the Notes, hereby is deleted in its entirety and
replaced with the following:
“Notice
of redemption shall be given in the manner provided in Section 106 not less
than
3 nor more than 25 days prior to the Redemption Date unless a shorter period
is
specified in the Debt Security of the series to be redeemed, to each Holder
of
Debt Securities to be redeemed, but failure to give such notice in the manner
herein provided to the Holder of any Debt Securities designated for redemption
as a whole or in part, or any defect in the notice to any such Holder, shall
not
affect the validity of the proceedings for the redemption of any other such
Debt
Securities or portion thereof.”
(d) Subsections
(b) through (f) of Section 1504 (Conditions to Defeasance or Covenant
Defeasance) of the Indenture and any corresponding provisions in the 2007 Notes,
hereby are deleted in their entirety and replaced with “Intentionally
Omitted.”
SECTION
2.2. Amendments to First Supplemental Indenture. Effective
as of the Amendment Effective Date:
The
following Sections of the First Supplemental Indenture, and any corresponding
provisions in the Notes, hereby are deleted in their entirety and replaced
with
“Intentionally Omitted.”:
Existing
Section Number Caption
SECTION
2.4. Limitations
on Incurrence of Debt.
SECTION
2.15. Provision
of Financial Information.
ARITCLE
THREE
MISCELLANEOUS
SECTION
3.1. Ratification of Indenture.
Except
as
expressly modified or amended hereby, the Indenture continues in full force
and
effect and is in all respects confirmed and preserved.
SECTION
3.2. Governing Law.
This
Second Supplemental Indenture and each Note shall be governed by and construed
in accordance with the laws of the State of New York. This Second Supplemental
Indenture is subject to the provisions of the Trust Indenture Act of 1939,
as
amended, and shall, to the extent applicable, be governed by such provisions.
SECTION
3.3. Counterparts.
This
Second Supplemental Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION
3.4. References to Second Supplemental Indenture.
Any
and
all notices, requests, certificates and other instruments executed and delivered
after the execution and delivery of this Second Supplemental Indenture may
refer
to the Indenture without making specific reference to this Second Supplemental
Indenture, but nevertheless all such references shall include this Second
Supplemental Indenture unless the context otherwise requires.
SECTION
3.5. Effect of this Second Supplemental Indenture.
From
and
after the Amendment Effective Date, the Indenture shall be deemed to be modified
as herein provided, but except as modified hereby, the Indenture shall continue
in full force and effect. The Indenture as modified hereby shall be read, taken
and construed as one and the same instrument.
SECTION
3.6. Severability.
In
the
event that any provisions of this Second Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of
the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION
3.7. Trustee Not Responsible for Recitals.
The
recitals contained herein shall be taken as the statements of the Company,
and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Second Supplemental
Indenture.
SECTION
3.7. Effectiveness.
This
Second Supplemental Indenture shall become effective, upon execution by the
Company and the Trustee, on the Amendment Effective Date. As used herein, the
“Amendment Effective Date” shall mean the date that the Company delivers written
notice to the Trustee that the Notes tendered and not validly withdrawn on
or
prior to December 30, 2005 (the expiration date for the consent solicitation)
pursuant to the Company's Offer to Purchase and Consent Solicitation Statement
dated December 16, 2005,
have
been
accepted for purchase.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF,
the
parties hereto have caused this Second Supplemental Indenture to be duly
executed by their respective officers hereunto duly authorized, all as of the
day and year first written above.
OMEGA
HEALTHCARE INVESTORS, INC.
By:
/s/
Robert O. Stephenson
Name:
Robert
O. Stephenson
Title:
Chief
Financial Officer
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Trustee
By:
/s/
Charles S. Hodges
Name:
Charles
S. Hodges
Title:
Vice
President